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November 01, 2012

Guardianship and Capacity Issues

Erica F. Wood

National Guardianship Summit Standards and Recommendations Implementation

As 2012 opened, the Commission, as part of the National Guardianship Network (NGN), sought to raise awareness about the landmark Standards and Recommendations resulting from the October 2011 Third National Guardianship Summit. The Summit focused on post-appointment guardian performance and decision-making, and aimed to offer guidance to family and professional guardians on financial, medical, and residential decisions; on the guardian’s relationship to court; and on reasonable fees.

In August, the Commission sponsored a successful resolution before the ABA House of Delegates supporting the Summit Standards and Recommendations and urging their implementation. The Commission anticipates the forthcoming publication of the Standards and Recommendations, as well as the Summit’s extensive background papers (including two co-authored by Commission staff), in a special issue of the Utah Law Review very soon.

Taking Wing

A key recommendation of the Summit was the creation of state "Working Interdisciplinary Networks of Guardianship Stakeholders" (WINGS). The concept is for state courts to partner with community entities in the aging, disability, guardianship, and mental health fields to advance adult guardianship reform through ongoing problem-solving groups. These groups would look at how guardianship is working in the state, how it can truly function as a last resort through creative use of less restrictive decision-making options, where the pressure points are, and what solutions might be at hand.

On behalf of the NGN, the Commission sought and received support from the State Justice Institute and the Borchard Foundation Center on Law and Aging to promote WINGS nationally. NGN has announced a Request for Proposals from the highest court in each state to partner with community groups in establishing WINGS, and will select four states as pilots.

Multi-State Guardianship Cases

Adult guardianship jurisdiction may seem a dry and arcane topic, but it actually has a vivid human face. If more than one state is involved in a guardianship case, as is increasingly common with our mobile society and inter-state health markets, families may be caught in jurisdictional tangles than can cost a lot of money, delay good care, and aggravate disputes.

A solution is the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, now passed by 34 states, DC, and Puerto Rico. The Act targets instances in which a case needs to be transferred to another state, a guardian needs to be recognized in another state, or there is a question about which state is the proper forum to hear a guardianship case. The Act also has provisions to help prevent elder abuse.

In 2012, the Commission began working with AARP to promote passage of the Act in six of the remaining states that are still not benefitting from its widely adopted, simple jurisdictional rules. The Commission is preparing state-specific fact sheets, talking points, and Q&As.

Supported Decision-Making

In October, the Commission partnered with the ABA Commission on Disability Rights and the U.S. Administration on Intellectual and Developmental Disabilities in a pioneering roundtable discussion entitled Beyond Guardianship: Supported Decision-Making by Individuals with Intellectual Disabilities.

The one-day Roundtable included self-advocates, members of the judiciary, advocacy groups, family members, service providers, government agencies, and more. The Roundtable aimed to empower and support the decision making of the growing population of individuals with intellectual disabilities, looking beyond the current guardianship model. It was spurred by the rising movement of "supported decision-making" in accord with the United Nations Convention on the Rights of Persons with Disabilities.


Another Successful Commission Partnership Project:

New online course for primary care physicians and other clinicians on assessment of capacity of older adults

Rush University Medical Center and the American Bar Association Commission on Law and Aging have released an interactive educational curriculum on assessing the capacity of older adults, funded by The Retirement Research Foundation. The course is aimed at physicians with a variety of backgrounds, but is suitable and valuable for all health care clinicians and students.

Why the Course is Needed

The 21st century is bringing about vast changes in the demographics of the United States. Notably, the population is aging at a rapid rate, incidence of chronic illness and dementia is increasing, the disability population is aging, the nature of medical choices is changing due to evolving medical technology, and health care delivery systems are becoming increasingly complex.

These trends bring health care clinicians up starkly against a growing challenge to better understand the process of capacity assessment and the clinicians’ roles.

Course Content and Components

The curriculum includes six modules:

  • The importance of evaluating patients’ capacities;
  • Key principles and practices;
  • The evaluation process and content;
  • Specific capacities and situations;
  • When to conduct an evaluation yourself and when to refer; and
  • Working with courts in guardianship proceedings.

The course features videos to illustrate salient points, and includes a pocket-sized card for quick reference. The curriculum is downloadable, and has a downloadable glossary and resource page.

Taking the Course

The curriculum is expected to take no longer than four hours to complete, and need not be completed in one sitting. Viewers will be able to log off and then log back on. There is a brief post-test (about five questions) at the end of each module. The course will be open starting January 14, 2013. For more information, contact Michelle Hochwert at 312-942-0417 or at [email protected].